On June 26, 2019, an appellate court agreed that once a medical malpractice case was settled and attorneys fees awarded, the only forum to challenge the fee award is before the same court and not in a subsequent legal malpractice action. The medical malpractice claim was settled for $3,700,000 received from three physicians and a hospital. Each physician/hospital contributed between $500,000 up to $1,300,000, totaling an aggregate settlement of the action (under one index number) in the amount of $3,700,000.

The settlement and legal fees of $864,552 were approved by Justice Baisley of the Suffolk County Supreme Court applying the reduced medical malpractice sliding scale retainer separately to each settling physician/hospital. Usually, the attorney's fees are calculated on the aggregate amount of the settlement at a greatly reduced cost to the client. The Justice who approved the fee application at settlement, accepted plaintiff's counsel contention that Judiciary Law Section 474-a (which applies to an “action” for medical malpractice) did not require the application of the retainer to the aggregate settlement which would have resulted in attorneys fees of only $516,226.

The plaintiff argued that the attorney deceived her by using the Court's approval of the $864,552 legal fee to make her think that his taking a fee of only $710,000 was a magnanimous gift to her. Instead, she claimed the attorney engaged in deceptive acts prohibited by Judiciary Law Section 487 in charging her $194,000 more than the maximum fee allowed of $516,226. The appellate court held that the only remedy was for the client to file a motion under the caption of the medical malpractice action to vacate the judgment awarding the legal fees which, in order to succeed, will require proof of fraudulent conduct. Urias v Daniel P. Buttafuoco & Assoc., PLLC, 2019 WL 2607327